USARK Federal Lawsuit Update and FAQ February 2014

By USARK

On Friday (2/21/14), the Department of the Interior (DOI) responded to USARK’s legal challenge on the current injurious species listings by filing a “Motion to Dismiss” our claims. This was expected and USARK has been preparing for this action. USARK counsel is currently working on our reply which is due within 14 days (March 7).

Overall, Fish and Wildlife Service (FWS) is demanding more proof than is required at this stage. A complaint need only make general, non-conclusory allegations that demonstrate legal standing. At later stages, we will be required to present additional evidence, which we are more than prepared to do. In the meantime, we thought it would be helpful to provide our members with a brief analysis and explanation of the Motion and some of the legal arguments raised.

The Government has filed a “motion to dismiss.” What does this mean?

Generally speaking, the first action a defendant (in this case the government) will take in response to a lawsuit is to ask the judge to dismiss the case in its entirety and each count individually. This is fairly routine and entirely expected, particularly here, as this is first ever challenge to a Lacey Act “injurious” listing.

There are several fairly common “grounds” for seeking dismissal. Some will challenge the legal basis for the complaint and others will challenge whether USARK has legal “standing” (i.e., the right to sue).

Can you explain the various arguments that the DOI has raised and how USARK will respond?

In terms of the substance, the government has challenged the complaint on several grounds. They have taken a “kitchen sink” approach (i.e. listing any and all possible arguments available). As an overreaching matter, FWS complains that USARK failed to identify individuals suffering the appropriate types of harm for the National Environmental Policy Act (NEPA) and Lacey Act claims. It also alleges that USARK itself does not have legal standing. The following are some of the claims raised by FWS and USARK’s response:

•FWS Claims that USARK has not demonstrated injury to the organization itself.

USARK need not allege injury to itself as an organization as we are not suing in our own right. Our standing is based on something known as “associational standing,” meaning that USARK is suing on behalf of our members. We are confident that we can meet the test for associational standing.

•FWS claims USARK members do not have “prudential standing” to raise claims under NEPA and the Lacey Act.

Prudential standing is a judge-made doctrine that says when a plaintiff raises claims under a statute it must show that the injury asserted and claims made fall within the “zone of interests” the law is designed to protect. With regard to the NEPA claims, because it is an environmental statute, courts have held that those with purely economic interests cannot challenge an agency’s NEPA compliance. Aware of this, we have been careful to ensure that we’ve made appropriate claims and have sufficient member declarations that go beyond economics and demonstrate environmental harm. As a result, this claim is not of great concern.

The claim that we lack prudential standing under the Lacey Act poses a greater challenge. We have two claims under the Lacey Act: (1) that the prohibition on interstate commerce/transportation is unlawful and (2) that the rule is arbitrary and capricious.

We are less concerned about the first claim because case law supports a party’s ability to challenge a regulation without having to break the law to get into court. The arbitrary and capricious claim (unjust action or a decision that disregards reason and logic) is more of an issue. The government claims that the Lacey Act’s purpose is to prevent harm for injurious species, and USARK wants the opposite. This is a facially appealing argument, but every modern environmental statute, including the Endangered Species Act (ESA), allows those with an economic interest to challenge regulations. The Lacey Act is so old (passed in 1900) and lacking in detail that it does not translate into our modern age. We feel that we can overcome this challenge as well.

Are there other grounds on which FWS is seeking dismissal?

Yes. FWS is claiming that USARK’s challenge to the interstate transportation and commerce claim untimely. The government asserts that this ban was included in regulations adopted in the 1960s and it is far past the six-year statute of limitations for challenging a rule.

However, as currently written, the statute does not include a ban on interstate commerce or transportation of injurious species within the "continental United States." Rather, it only repeats that the ”shipment between the continental United States, the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any territory” of injurious species is prohibited. FWS interpreted that as a prohibition of interstate commerce with the listing of the four species of constricting snakes. USARK has six years to file a complaint against the initial listing of the four species, which happened on January 23, 2012.

FWS challenges USARK over its two year delay in filing suit. Does this matter?

Not in any meaningful way. We are well within the statute of limitations of six years and can reasonably explain to the court that the reason for waiting was to both reach out to the agency and see what action FWS intended to take on the remaining species